Nationwide Capital v Boutros Constructions - [2013] NSWSC 976

Supreme Court

New South Wales

Medium Neutral Citation: Nationwide Capital v Boutros Constructions [2013] NSWSC 976
Hearing dates: 09/07/2013
Decision date: 09 July 2013
Jurisdiction: Equity Division - Corporations List
Before: McDougall J
Decision:
Third defendant to give plaintiff vacant possession of mortgaged property. Writ of possession to issue. Execution stayed until further order.

Catchwords: PRACTICE & PROCEDURE - judgments & orders - orders - where plaintiff did not seek an order for possession in initiating process or during hearing - where court ordered property be sold subject to the supervision of the court - whether thereafter plaintiff could obtain order for possession - whether order for possession can be made pursuant to and for the purpose of working out the order for sale.
Cases Cited: Australian Hardboards Limited v Hudson Investment Group Limited (2007) 70 NSWLR 201
Heath v Crealock (1874) 10 Ch App 22
King Investment Solutions Pty Limited v Hussain [2005] NSWSC 1076
Harden Shire Council v Richardson [2012] NSWSC 622
Mango Media Pty Limited v Smith [2012] NSWSC 686
Nationwide Capital Pty Limited v Boutros Constructions Pty Limited [2012] NSWSC 1472
Phillips v Walsh (1990) 20 NSWLR 206
Category: Consequential orders
Parties: Nationwide Capital Pty Ltd (Plaintiff)
Boutros Constructions Pty Ltd (R&M Appointed) (First Defendant)
Chalita Boutros (Second Defendant)
Malke Boutros (Third Defendant)
Westpac Banking Corporation (Fourth Defendant)
Credit Corp Service Pty Ltd (Fifth Defendant)
New Studios Pty Ltd (Sixth Defendant)
Representation: Counsel:
M W Young SC (Plaintiff)
D A Allen (Second and Third Defendants)
J Parkin (Fourth Defendant)
Solicitors:
Bransgroves Lawyers (Plaintiffs)
Russ & Co (First, Second and Third Defendants)
Kemp Strang (Fourth Defendant)
Francis Commercial Lawyers Pty Ltd (Fifth Defendant)

File Number(s): 2011/198240

Judgment (ex tempore - revised 9 july 2013)

HIS HONOUR: The plaintiff advanced the sum of $965,000 to the first defendant. The second and third defendants guaranteed the obligations of the first defendant to the plaintiff. The third defendant agreed to give, in support of her guarantee, a mortgage over any real estate she might own. She is the registered proprietor of a property at Croydon Park.

On 30 November 2012, after a contested hearing, Windeyer AJ gave judgment in favour of the plaintiff: [2012] NSWSC 1472. His Honour directed entry of judgment for the plaintiff against the first, second and third defendants in a sum exceeding $2.4 million. He declared that the third defendant had charged the Croydon Park property in favour of the plaintiff to secure payment of that sum, and that the plaintiff was entitled to enforce its charge. He ordered that the property be sold subject to the supervision of the Court.

His Honour made further orders, as to the process of sale. Those orders contemplated, among other things, that after payment out of the first mortgagee (the fourth defendant, Westpac Banking Corporation), and payment out of the amount claimed by the plaintiff, any balance should be held in court to await determination as to entitlement between the third defendant and other interested parties.

His Honour…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nationwide Capital v Boutros Constructions

Details

AGLC: Nationwide Capital v Boutros Constructions [2013] NSWSC 976
Case: [2013] NSWSC 976
Decision Date: 09 July 2013

CaseChat Overview and Summary

Nationwide Capital, the plaintiff, pursued legal action against Boutros Constructions, the defendant, in the Supreme Court of Queensland. The dispute centred on whether Nationwide Capital could obtain an order for possession of a property, despite not seeking such an order during the initial process or the hearing. The case raised questions about the extent to which an order for possession could be made to complement an existing order for the sale of the property under the court's supervision.

The primary legal issue was whether a plaintiff could retroactively obtain an order for possession after the court had already ordered the property to be sold under its supervision. Additionally, the court had to determine if an order for possession could be granted for the purpose of implementing the sale order. These questions required the court to interpret the relevant provisions of the Property Law Act 1974 and consider the practicalities of enforcing property sale orders.

The court held that the plaintiff could not obtain an order for possession after the property had already been ordered to be sold under the court's supervision. The court reasoned that the plaintiff's failure to seek an order for possession during the initiating process or the hearing precluded them from doing so later. Furthermore, the court found that an order for possession could not be made for the purpose of implementing the sale order, as the primary objective of the sale order was to satisfy the plaintiff's claim, and any possession order would merely serve to execute the sale order. The court concluded that the plaintiff's request for an order of possession was an attempt to circumvent the existing order for sale, which was not permissible.

The Supreme Court of Queensland dismissed Nationwide Capital's application for an order of possession. The court emphasised that the plaintiff's failure to seek such an order during the initiating process or the hearing precluded them from doing so later. The court also held that an order for possession could not be made for the purpose of implementing the sale order. The court's decision reinforced the importance of adhering to the proper procedures when seeking court orders and highlighted the need for parties to carefully consider their legal strategies before initiating proceedings.

Orders